How to protect computer software via copyright
Software businesses have become hugely important – providing solutions to new problems every day. How do you protect software and does it fall under copyright protection?
Disclaimer: This FAQ should not be construed as legal advice on any specific facts. The contents are intended for general informational purposes only. You are urged to consult your own solicitor on any specific legal questions you may have.
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by Dr Martin Douglas Hendry
Is computer software copyrightable?
Computer software is often covered by copyright protection. This protection can even extend internationally.
The TRIPS agreement (Article 10.1) determines that computer software (whether source code, or compiled object code) is considered a literary work. This way, software is protected much in the same way a book is.
Despite this, due to the complexity and collaborative nature of software creation – it can be challenging to assert copyright over software.
However, this challenge can be overcome if copyright ownership is considered and integrated into the development of the software.
What is the advantage of protecting software via copyright?
A big advantage copyright confers upon the rights holder, is the length of protection over the work.
Copyright for literary works lasts for the life of the author plus 50 years (if the author is an individual). If the creator of the work is an entity (e.g. a company) the length of protection lasts for 50 years after the point of creation.
Do you have to register software copyright to be protected?
No. A work is automatically protected by copyright at the point it is created.
Despite this, in certain jurisdictions (e.g. the USA) where copyright works can be registered, it can be beneficial due diligence to do so.
What else do I need to know?
Copyright is automatically assigned to the creator of a literary work upon its creation.
If the creator is an employee of a business, the copyright is automatically owned by the business.
However, if the creator is a freelancer or third party – technically they may own the copyright to the software created by law.
Collaboration and codebases
Software creation is highly collaborative and often can involve the use of pre-existing code and templates.
Because of this, it is critical to make sure that you are the sole owner of the critical original aspects of the software.
If you need assistance with this, contact our team.
Protection of the expression, not the idea or technical aspect
Copyright protects a work in the form of its recorded expression.
It does not protect the underlying concept.
It does not protect the technical effect or function.
It is important to be aware of what copyright protects, and whether other forms of intellectual property right are required to inhibit others from emulating what is unique about your software.
If you would like assistance with identifying the best way to protect your software, contact our team.
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